Title Vi—school Discipline And Disparate Impact

Federal overreach has pushed many school leaders to prioritize the pursuit of racial parity in school discipline indicators—such as detentions, suspensions, and expulsions over student safety. In 2014, the Obama Administration issued a Dear Colleague Letter that muddied the standard for civil rights enforcement under Title VI for student discipline cases. Before the DCL, a school would be in violation of federal law for treating black and white students differently for the same offense (disparate treatment); under the Obama Administration schools were at risk of losing federal funding if they treated black and white students equally but had aggregate differences in the rates of school discipline by race (disparate impact).

OCR leveraged federal civil rights investigations as policy enforcement tools; these investigations could only end when school districts agreed to adopt lenient discipline policies, commonly known as “restorative justice.” Academic studies, as well as student and teacher surveys, suggest that academics and school climate have been harmed substantially by this push.

The Trump Administration rescinded the Obama Administration’s guidance on school discipline and corrected the Obama Administration’s overreach in Title VI enforcement.

OCR should also review all resolution agreements with school districts to conform with this policy.

As part of this effort, the new Administration should also direct the department and DOJ jointly to issue enforcement guidance stating that the agencies will no longer investigate Title VI cases that exclusively rest on allegations of disparate impact. To the extent that the Biden Administration publishes guidance or promulgates a regulation on this topic, the next Administration should rescind the guidance and commence rulemaking to rescind the regulation.

Getting the federal government out of the business of dictating school discipline policy is a good start. But if the next conservative Department of Education simply rescinds the Biden-era regulation, it could very easily be enforced again on Day One through a Dear Colleague Letter by another leftist Administration.

In addition to rescinding the policy and any related guidance, the next Secretary should work with the next Attorney General on a regulation that would clarify current regulations to state that Title VI of the Civil Rights Act does not include a disparate impact standard. As law professor Gail Heriot has noted, the alleged existence of a disparate impact standard under Title VI makes everything presumed illegal unless given special dispensation by the federal government.

Although it would require political capital from the White House, given that mainstream news outlets are sure to frame it as an attack

The next Administration should continue the policy of the Trump Administration in this area and direct the department to conduct a comprehensive review of all Title VI cases to ascertain to what extent these cases include allegations of disparate impact. on civil rights, the next conservative Administration should take sweeping action to assure that the purpose of the Civil Rights Act is not inverted through a disparate impact standard to provide a pretext for theoretically endless federal meddling. Assistance to States for the Education of Children with Disabilities; Preschool Grants for Children with Disabilities (Equity in IDEA)

Effective January 18, 2017, the department issued final regulations under Part B of IDEA that require states to consider race and ethnicity in the identification, placement, and discipline of students with disabilities. The new Administration should rescind this regulation. Students should never be denied access to special education services because of their race or ethnicity, but this is happening in school districts across the country thanks to the Obama Administration’s Equity in IDEA regulation. This was not the intent of the regulation, but it is an inevitable byproduct of its flawed assumptions. The Obama Administration looked at the racial statistics on special education assignment and made two assumptions: that African American students were dis- proportionately overrepresented, and that this overrepresentation constituted a harm that required federal pressure to ameliorate.

School districts deemed to overrepresent minority students in special education assignment, or in discipline amongst special education students, are tagged by their state education agencies as engaging in “significant disproportionality,” and are required to reallocate 15 percent of their IDEA Part B money into coordinated early intervening services that are intended to address the “root causes of dispro- portionality.” In practice, this can mean raiding special education funding to pay for CRT-inspired “equity” consultants and professional development. This is especially problematic given that both of the assumptions behind Equity in IDEA are flawed. Special education services provide extra assistance to students; they do not harm them. And according to the most rigorous research on the subject, conducted by Penn State’s Paul Morgan, black students are actually underrep- resented in special education once adequate statistical controls are made. That means that this regulation effectively further depresses the provision of valuable services to an already underserved group.

The next Administration should immediately commence rulemaking to rescind the Equity in IDEA regulation. No replacement regulation is required.

The Office of Special Education and Rehabilitative Services (OSERS) should prepare a digest of the best research on this subject and share it directly with state superintendents and state special education leaders across the country, who have been led by this regulation to believe a false problem diagnosis. Every effort should be made to dissuade states from continuing to operate on the assumption that overrepresentation requires state intervention after the federal pressure is rescinded.

Provide School Meals to Children in Need; Do Not Use Federal Meals to Support Radical Ideology

In May 2022, the U.S. Department of Agriculture (USDA) tried to advance a radical political agenda using the federal school meal program. Nearly a century ago, federal lawmakers adopted the National School Lunch Program (NSLP) and School Breakfast Program (SBP) and other services that provide meals for K–12 students to give children from low-income families access to food while at school. Since the 1940s, federal lawmakers have greatly expanded these meal programs, creating an entitlement for nearly all students, regardless of family income levels, and have turned the meal programs into some of the most wasteful federal pro- grams in Washington. Now, the USDA is threatening to withhold federal taxpayer spending for these meals from schools that do not implement Title IX of the Education Amendments of 1972 so that the term “sex” is replaced with “sexual orientation and gender identity” (SOGI).

The next Administration should prohibit the USDA or any other federal agency from withholding services from federal or state agencies—including but not limited to K–12 schools—that choose not to replace “sex” with “SOGI” in that agency’s administration of Title IX. The Administration will have significant support for this policy change among state officials and Members of Congress. Twenty-two state attorneys general filed a lawsuit after the USDA’s announcement that the agency intended to withhold spending from schools that do not replace sex with SOGI. Members of Congress also introduced legislation in 2022 that would prohibit the agency from carrying out its intentions regarding Title IX.

Phase Out Existing Income-Driven Repayment Plans While income-driven repayment (IDR) of student loans is a superior approach relative to fixed payment plans, the number of IDR plans has proliferated beyond reason. And recent IDR plans are so generous that they require no or only token repayment from many students.

The Secretary should phase out all existing IDR plans by making new loans (including consolidation loans) ineligible and should implement a new IDR plan. The new plan should have an income exemption equal to the poverty line and require payments of 10 percent of income above the exemption. If new legislation is possible, there should be no loan forgiveness, but if not, existing law would require forgiving any remaining balance after 25 years.

President Biden has proposed a new income-driven repayment program that would be extremely generous to borrowers, requiring only nominal payments from most students. It would turn every policy lever to the most generous setting on record (e.g., lowering the percentage of income owed from 10 percent to 25 per- cent under existing plans to 5 percent, lowering the number of years of payment required from 20 or 25 years to 10 years, and increasing income exemption from 150 percent to 225 percent of the poverty line). The median borrower who earns an associate degree would owe only $15 a month, regardless of how much he or she had borrowed. The median bachelor’s degree borrower would owe only $68 a month. This plan essentially converts these student loans into delayed grant programs.

OTHER STRUCTURAL REFORMS THAT THE DEPARTMENT OF EDUCATION REQUIRES

Reform Federal Education Data Collection The National Assessment of Educational Progress (NAEP) and other data col- lections currently release data by race, ethnicity, socioeconomic status, English language proficiency, disability, and sex. However, one of the most important—if not the most important—factor influencing student educational achievement and attainment is family structure. As education scholar Ian Rowe has noted, NAEP already collects data on students’ family structure; it just does not make those data publicly available.

The Department of Education (or whichever agency collects such data long term) should make student data available by family structure to the public, including as part of its Data Explorer tool. As discussed above, data collection efforts should be consolidated under the Census Bureau.

Data collection efforts in higher education should also be improved by housing higher education data at the Department of Labor. This would provide more transparency in evaluating postsecondary education and workforce training program outcomes; contextualize those results based on trends observed more generally; enable the adjusting of real wages to account for regional differences in earnings and cost of living; and develop a reliable methodology for risk adjusting institutional and program outcomes to more accurately reflect the value added of education programs (as opposed to their admissions selectivity).

Reform the Negotiated Rulemaking Process at ED

The U.S. Department of Education is required by statute14 to engage in nego- tiated rulemaking prior to promulgating new regulations under Subchapter 1 of the Elementary and Secondary Education Act as well as Subchapters II (Teacher Quality Enhancements) and IV of the Higher Education Act of 1964 (Student Assistance). The purpose of negotiated rulemaking is to engage a committee of stakeholders early in the drafting of proposed regulations to ensure that the reg- ulation can be implemented as written, to understand any potential unintended consequences, and to seek suggestions from stakeholders on alternative solutions. The goal is for the negotiators to reach a consensus, thus smoothing the way to promulgate a new rule.

Although it is helpful for the department to receive stakeholder input, the negotiated rulemaking process has become an expensive and time-consuming undertaking. Consensus is only rarely reached, enabling the department to pursue its own path. The department’s master calendar (which requires final rules to be

Currently the Department of Education relies on graduation rates and average earnings as proxies for educational quality. Both of those outcomes, however, are highly dependent upon a student’s socioeconomic background, sex, family status, and other factors. Colleges and universities with selective admissions policies post the strongest outcomes, primarily because they admit mostly low-risk, traditional students. Open enrollment institutions post the weakest outcomes, largely because life is challenging and complicated for low-income and non-traditional students, who may be forced to drop out when a work schedule changes, a child needs more attention, or an unexpected repair or medical bill makes continuing impossible. Such confounding factors make it difficult to isolate the impact of educational qual- ity versus socioeconomic factors on student outcomes. The Department of Health and Human Services faced similar challenges in trying to evaluate healthcare out- comes since social determinants of health result in worse health outcomes among those who are socioeconomically disadvantaged, have low educational attainment levels, have struggled with addiction, or have poor diet and exercise habits. Without risk adjustment of outcomes, hospitals treating wealthy patients will always appear to be delivering good care, and hospitals treating low-income patients will appear to be delivering poor care. Higher education outcomes data should be similarly “risk adjusted” to more carefully isolate the impact of educational quality versus socioeconomic status and other factors on college outcomes.

published by October 1 if they are to be implemented by July 1st of the subsequent year) compounds the problem, making it unduly challenging to update regulations as needed to keep pace with changes in education, finance, accounting, pedagogy, and student assessment.

In recent decades, negotiated rulemaking has become a veritable three-ring circus, replete with negotiators who use their Twitter accounts and other social media feeds during negotiations to denigrate the process and their peer negoti- ators in real time. A few Members of Congress use the public comment process to deliver political speeches, apparently to raise their own profiles but without adding any new information to the process. Some advocacy groups have latched onto the process for fundraising purposes, sometimes misrepresenting negotiation language to agitate followers and supporters and encourage them to make financial contributions. At times, the department itself has appeared to sabotage consensus, which enables them to write the regulation as they wish and without regard to the concerns raised by negotiators.

The Department of Education should work with Congress to amend the HEA to eliminate the negotiated rulemaking requirement. At a minimum, Congress should allow the department to use public hearings rather than negotiated rulemaking sessions.